In
R. v. Belghar, (NSW Ct. Crim. App., May 4, 2012), an appellant court in the Australian state of New South Wales reversed a trial court judge's decision that a Muslim defendant charged with assault, intimidation and attempted murder should be granted a non-jury trial. Defendant, who allegedly attacked his wife's sister, requested the bench trial because he believed the jury might be prejudiced against his religious beliefs. The Crown objected to the request. The attack apparently took place because defendant was angry that his sister-in-law took his wife to the beach where his wife displayed her body (as evidenced by her sunburned shoulders). According to the trial court judge:
this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife's family having some authority over her.... In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre.
The Court of Criminal Appeals, however, reversed the decision, holding that:
the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice... is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict....
It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding "conservative" views about the place and role of women in marriage or in wider society. However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result.
9News reports on the decision.
